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How the Royal Charter has been spun to the regional press

The Newspaper Society calls itself ‘the voice of local media’ and says it ‘represents and promotes the interests’ of 1,100 newspaper titles. It has circulated to its members across the country a briefing on the Royal Charter approved by Parliament in March. This is a remarkable document because every paragraph, and virtually every sentence, contains an error, a misjudgement or a misrepresentation. 

On this basis it is easy to see why hard-pressed local editors might object to the Royal Charter – because the body that claims to promote their interests is giving them such a biased picture. Below is the briefing, with our comments in bold. 

 

Why the industry is opposed to the March 18th Royal Charter provisions?

The Royal Charter framework would not be independent self regulation in any sense of the word. The Deputy Prime Minister has said that ‘the regional and local press… must not pay the price for a problem they did not create’. The proposals extract an unacceptably high price for regional and local newspapers, including huge financial penalties for publishers who chose to be outside the system and an arbitration service which would open the floodgates to compensation claims.

These claims about an ‘unacceptably high price’, ‘huge financial penalties’ and opening ‘the floodgates of compensation claims’ are wrong, as is explained below.

 

Statutory Underpinning

The principle that a free press should not be subject to Parliamentary statute has been conceded.

There is no principle that places the press beyond the reach of statute. If there was it was violated by the Human Rights Act, in which the industry sought protections specifically for the press. And by the Data Protection Act, where again the press is singled out for special treatment – welcomed by the press. And by the Contempt of Court Act, the recent Defamation Act and many more Acts that have direct impact on the press. In a democracy the ‘free press’, like everyone else, is subject to the rule of law.

The Royal Charter will be underpinned by statutory provisions locking in the Charter and recognition criteria [and] making it extremely hard for them to be altered.

The reason it should be hard to alter the Charter is to protect the press from political interference. It would not have been consistent with press freedom to leave the Charter open to easy meddling by the Privy Council, which is controlled by ministers and meets in private.

This means that the industry does not have the flexibility to develop a system of independent self-regulation that works for the regional and local newspaper industry.

The Charter leaves ample flexibility for this, but total flexibility can’t be an option since that would imply the flexibility to do nothing or the flexibility to create something Draconian. The public expects to see a regulator or regulators that are effective and also independent, both of the politicians and of editors and proprietors. This is precisely what Leveson recommended and what the Charter is set up to deliver.

 

Exemplary Damages

The system will be underpinned by statutory penalty clauses.

They are not penalty clauses but incentives to membership. 

Exemplary damages and costs in libel and other cases – which could run to hundreds of thousands of pounds – could be imposed by a court to penalise those publishers who do not sign up to an “approved regulator”.

On exemplary damages, the clauses actually provide protection – a statutory immunity, in fact – for newspapers that join the regulator, and (for libel awards) they do not increase the likelihood of such damages if you are outside the regulator. Such damages have long been available to judges where the defendant’s conduct was calculated to make a profit. Now privacy and harassment claims will also be eligible, but the threshold is, if anything, higher – deliberately or recklessly disregarding the rights of others, and where the conduct is ‘outrageous’. Such damages will continue to be very rare – they have not been awarded in a single media case in this century.

On costs, again the Charter gives protection to newspapers. If a paper participates in a regulator offering a cheap, quick and fair arbitration system and a claimant insists on taking that paper to court instead, the paper will generally not have to pay legal costs, whatever the verdict. That is good news for newspapers. It follows, however, that if a newspaper stays outside and denies a claimant the option of arbitration, it is the paper that will generally pay all costs, win or lose. That is fair.  

This is likely to contravene European Human Rights law and will have a chilling impact on freedom of expression.

Most legal opinion, including that relied on by Government, says there is no breach of human rights law. But if there is, then newspapers that object will be able to overturn all these measures, so there is presumably no reason for them to be concerned and no reason for them to be chilled. 

It impacts on newspapers, magazines and websites (but not broadcasters). Furthermore, even where Publishers sign up to an “approved regulator” they are not guaranteed total protection from these measures.

This is wrong. Where publishers join a recognised self-regulator they are guaranteed total protection from exemplary damages, except where a court finds that the self-regulator has behaved over the matter in a ‘manifestly irrational’ way, which is a very high test. And the cost penalties do not apply to those signed up, while the cost protections do apply. Newspapers that join a recognised self-regulator can of course still be found liable for ordinary damages and costs in the arbitral scheme, but this should be cheaper than going to court.

 

Arbitration Service

The Charter requires the establishment of an arbitration service for civil legal claims which will be free for complainants to use. This will inevitably lead to many thousands of legal claims against regional and local publishers and significant legal costs.

No evidence is offered to show that any extra claims will be made, let alone ‘many thousands’, nor is there any reason to believe such things. To be heard by the arbitrator, complainants will have to show that their cases would be capable of going to court, in other words that their legal rights have been breached. Why would there suddenly be ‘many thousands’ of such cases where there were not before? Lord Justice Leveson praised regional and local papers for their law-abiding ways. Was he wrong?

Claims that are currently resolved easily and without cost to either side could become compensation claims. The current code complaints system would be sidelined with the majority of complainants seeking money.

This assumes that a very large number of complaints to the PCC are not just about code breaches (e.g. accuracy) but are capable of being legal actions, meaning that the complainants’ civil rights have been breached. It also assumes that complainants will want to go to arbitration, even though for years the industry has asserted that most people merely want the record put straight. The Newspaper Society had produced no evidence to show that most complainants have any grounds for seeking compensation, nor that they would choose to do so if they did. 

 

Funding

The regulatory body must agree a funding system with the industry so that it can fulfil its wide and extensive obligations. Inevitably the regulatory body will dictate its funding needs to the industry.

Here is what the Charter says: ‘Funding for the system should be settled in agreement between the industry and the Board, taking into account the cost of fulfilling the obligations of the regulator and the commercial pressures on the industry.’ 

 

Powers

These will be greater than the courts and more extensive than any press regulator in the western world.

This is mere rhetoric. 

The regulator will have powers to award fines of up to £1 million.

It will, though the Charter states ‘up to 1% of turnover attributable to the publication concerned with a maximum of £1million’. So small publications can never face anything like £1million fines. And whose idea were £1m fines? They were first proposed by Lord Black and Lord Hunt, representing the press industry, in their evidence to the Leveson Inquiry.

It will have powers to hear third party and group complaints (e.g. from Pressure Groups, Local Authorities and others).

The PCC is able to hear third party complaints at present and sometimes does so. The Charter brings clarity to this. The Charter explicitly gives the regulator ‘discretion not to look at complaints if they feel that the complaint is without justification, is an attempt to argue a point of opinion rather than a standards code breach, or is simply an attempt to lobby’. So there is plenty of protection from frivolous or vexatious complainants.

It will have powers to require demanding reporting and audit functions relating to code compliance and the recording and documentation of complaints.

Yes, under the new system news publishers will have to have internal procedures in place to protect the public from abuse. This is a good thing, and exactly what newspapers would expect of any other industry they were writing about.

The regulator can direct front page apologies and corrections.

Yes, where they are appropriate. A paper that harms someone with a false report on its front page should not be allowed to tuck the correction away inside. Again this is not something that journalists would tolerate in any other industry they were reporting on.

There will be a heavy compliance cost on publishers in terms of professional advice and expertise.

No evidence is given to support this. How many regional and local papers currently have no compliance and legal advice? For their own protection and the public’s they should have access to these. It is surely essential to conducting any modern business and there is no reason it should be especially expensive. (And remember, membership of the regulator will reduce some costs and some risks.)

Editorial Code

The Editorial Code Committee must in future be appointed by the independent Board and the Code approved by the independent Board. Only a third of the Code Committee will be editors. Currently, the Code Committee is appointed by the industry and is composed of editors. This has been the cornerstone of the self regulatory system that works for regional and local papers. The Editors’ Code will no longer be an Editors’ Code.

The Charter says that one third of the code committee will be editors and one third will be other working journalists (with special provision made to include regional and local journalists). Do editors object so strongly to cooperating with working journalists? Is it editors alone who understand the ethical requirements of good journalism?

 

What happens next?

Regional and local newspapers have been cut out of negotiations and consultations with the Government over the March 18th Royal Charter and Recognition Scheme.

Regional and local papers were able to give evidence at length to the Leveson Inquiry, where their record attracted praise. The judge’s recommendations were fair and balanced and on any rational assessment generous to the press. The Charter embodies those recommendations. The regional and local press had many meetings with the political parties and attended cross-party talks in March. And if regional and local papers were cut out of all negotiations, why did Paul Vickers of Trinity Mirror say in February that he had been engaged in ‘intensive talks’? The Labour, Lib Dem and Conservative parties say they met the regional and national press several times as they were formulating their Charter versions, including the LibDem/Labour draft that was the basis for the final document approved by Parliament.

The Royal Charter and Recognition Scheme contravene the Leveson Report in fundamental ways. The Leveson Report recommended that the new regulatory model “should not provide an added burden to the regional and local press.” It said that “local, high-quality and trusted newspapers are good for our communities, our identity and our democracy and play an important social role” and that their “contribution to local life is truly without parallel.” It said the Government should “look urgently as what action it might be able take to help safeguard the ongoing viability of this much valued and important part of the British press.” The Government should honour these recommendations and not just pay lip service to them.

The Royal Charter not only provides for fair and differential terms for different types of publisher but requires an approved self-regulator to deliver this. (Curiously, this requirement was opposed by national press representatives.) No doubt, when they come to negotiating their share of the costs of the new system, regional and local newspapers will strike a hard bargain with the national newspapers whose conduct did so much to make change essential. Paul Dacre, editor of the Daily Mail, endorsed in a speech at the Leveson Inquiry the principle that ‘the polluter pays’. National papers could be held to that.

The Government has rejected calls by the industry to discuss the economic impact of their proposals on the regional and local newspaper industry and their impact on editorial and press freedoms and the freedom to publish.

These issues were discussed, in some cases at exhaustive length, at Lord Justice Leveson’s public inquiry, and those discussions informed his careful and balanced recommendations. 

The Royal Charter proposals should be discussed with the industry before they are presented to the Queen.

The Charter embodies the Leveson recommendations and these were discussed with the industry – including the regional press – by politicians in Mr Vickers’s ‘intensive talks’ from January to March.

This Government is misleading in making out that regional and local newspapers will under their Royal Charter proposals have flexibility to set up their own regulatory system which overcomes the substantial issues of concern to regional and local newspapers summarised in this note.

Regional and local papers are entitled to set up their own self-regulator under the Charter. Has the Newspaper Society costed such an initiative? Does it have evidence for what it says? 

The industry could set up its own regional and local newspaper regulatory body and apply for recognition under the Royal Charter if the Royal Charter is granted by the Queen and after the Recognition Panel is established (it would not be until September). However, no regulatory body will obtain recognition unless it fulfils the recognition criteria which are enshrined in the Charter. These criteria are common to all (nationals, regionals, locals, magazines, and news websites) and a regional and local newspaper regulator would have to comply with all the provisions, including the establishment of a free arbitration service for complainants with the power to award compensation.

Again, where is the evidence that complying with the recognition criteria would be prohibitively expensive? And that reference to ‘a free arbitration service for complainants’ is misleading. It may give the impression to local newspaper editors that members of the public can take a case through the arbitration process without paying anything, which in turn would imply that the whole bill would fall to newspapers. This is wrong. It was not Leveson’s proposal, nor is it in the Charter. Under the Charter arbitration is free for access, meaning there is no up-front charge to the plaintiff, but once the process is under way a losing claimant will have to cover his or her costs and, in frivolous or vexatious cases, pay the newspapers’ costs. It happens that the costs – for both sides – will be far lower than court costs.  

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